SF threatens legal action against FDA over e-cigarette health review

San Francisco City Attorney Dennis Herrera on Tuesday announced several measures being taken to rid the city of what he says is an “epidemic” of the use of electronic cigarettes by young people.

Speaking at City Hall Tuesday morning, Herrera said the Food and Drug Administration has failed to conduct a required pre-market review for e-cigarettes before they were allowed to sold in stores, effectively disregarding their impact on public health.

“The FDA has given the e-cigarette industry a pass. For no clear reason, the FDA has given these nicotine companies until 2022 to apply for what was supposed to be a pre-market review. The result is that millions of children are already addicted to e-cigarettes and millions more will follow if we don’t act,” he said.

According to Herrera, citing the Centers for Disease Control and Prevention, in 2018 tobacco use by youth increased by 36 percent from the previous year — the highest increase seen since the 1990s.

“These companies may hide behind the veneer of harm reduction but let’s be clear, their product is addiction. They’re in the business of getting people addicted or keeping them addicted,” he said. “Now it’s up to local governments like San Francisco to protect our children.”

Herrera announced that his office has teamed up with the cities of Chicago and New York to send a letter to FDA Commissioner Dr. Scott Gottlieb to demand that the agency conduct the required public health review of e-cigarettes, which Herrera says was already supposed to have been conducted years ago.

If the FDA does not conduct the review, the cities are threatening possible legal action.

Furthermore, San Francisco Supervisor Shamann Walton was set to introduce two separate pieces of legislation at Tuesday’s Board of Supervisors meeting.

The first would prohibit citywide sales of any e-cigarette that has not undergone FDA review. The legislation would also prohibit those products from being bought online or shipped to a San Francisco address. The second legislation Walton planned to introduce Tuesday would prohibit the sale, manufacture and distribution of e-cigarettes on city property, as well as Port of San Francisco property.

That legislation would stop San Francisco-based e-cigarette company Juul Labs, which subleases property on San Francisco’s waterfront, from doing business and expanding.

“E-cigarettes have been targeting our young people with their colors and their flavors and enticing our adolescents and this is predatorily pulling them toward nicotine addiction,” Walton said.

“If products have not been given the stamp of approval by the government then we know they’re not safe and until the FDA does that, we have to make sure that those products are not sold in our stores in San Francisco,” Walton said.

Lastly, Herrera said his office sent notice on Tuesday to Juul and the Pier 70 developer that Juul subleases from, seeking an explanation for why the e-cigarette company holds a tobacco distributor license at the location while maintaining that Juul does not sell tobacco products.

“What Juul is doing is irresponsible. They have claimed to not be part of the tobacco industry. I met with them with a concerned resident a few months back and they swore up and down that they were not connected to the tobacco industry and then and then about a week and a half later, they merged with a tobacco company,” Herrera said.

“Therefore, not only are they not truthful, but they are irresponsibly focused on working to addict young people on nicotine products so they will be longtime users,” he said.

If Walton’s proposals pass, they would add to an already restrictive list of tobacco products barred from being sold in the city. In 2017, the city passed legislation to restrict the sales of all flavored tobacco including menthol cigarettes.

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